Australian Key Ruling on Indigenous Fishing Rights

On Wednesday, 30 July, the Australian High Court in Canberra in a key ruling (Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29, judgement here) upheld a decision by the Federal Court earlier this year granting Aboriginal people rights of ownership over a large part of the Northern Territory’s (NT) coastline.

The court dismissed the appeal by the NT Government in a 5-2 vote, confirming the native title rights to the inter-tidal zone bordering Aboriginal land in the NT. The extension of their land rights gives the Aboriginal people exclusive access to these tidal waters which implies that they will now have the power to decide who enter these waters on up to eighty percent of the Northern Territory’s coast.

The ruling annuls those parts of NT's law that until now governed access to inter-tidal waters and licenses for commercial fishermen. Aboriginal leaders indicated that they had no desire to stop commercial and recreational fishing in the region and pledged to work co-operatively with fishing interests and the NT Government to ensure fishing could still take place in Aboriginal waters.

In the judgement, Justice Kirby stated that Prime Minister Rudd's national apology in February to the indigenous peoples was relevant to his decision to rule in favour of Aboriginal control of the inter-tidal zone:

“70. [G]iven the attention to, and nationwide reflection upon, its making, terms and reconciliatory purposes, it is appropriate in my view for this court to take judicial notice of that National Apology. The Court does not operate in an ivory tower. The National Apology acknowledges once again, as the preamble to the Native Title Act 1993 already did, the wrongs done in earlier times to the indigenous peoples of Australia, including by the law of this country. Those wrongs included the non-consensual denial and deprivation of basic legal rights which Australian law would otherwise protect and uphold for other persons in the Commonwealth. In the case of traditional Aboriginals, these right included rights to the peaceful enjoyment of their traditional lands and to navigate and to fish as their ancestors had done for aeons before British sovereignty and settlement.

71. Although the National Apology was afforded on behalf of the Government of the Commonwealth, with support of the Opposition and other political parties, and reflects an unusual and virtually unprecedented parliamentary initiative, it does not, as such, have normative legal operation. It is not contained in an Act of the Federal Parliament nor in a law made by any other Australian legislature with legislative powers. Yet it is not legally irrelevant to the task presently in hand. It constitutes part of the factual matrix or background against which the legislation in issue in this appeal should now be considered and interpreted. It is an element of the social context in which such laws are to be understood and applied, where that is relevant. Honeyed words, empty of any practical consequences, reflect neither the language, the purpose nor the spirit of the National Apology.”

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One Response to Australian Key Ruling on Indigenous Fishing Rights

This is a landmark ruling and I am glad to see that the courts upheld Australia v Arnhem Land Aboriginal Land Trust. It is important to continue to recognize Aboriginal land title – and this is an great example. Thanks for sharing.

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